Our friends atJust Security have just published an advance unedited version of the Human Rights Committee’s concluding observations on the fourth periodic report of the United States, as adopted yesterday by the Committee. The observations address many issues, but some of the highlights involve the extraterritorial application of the ICCPR, the use of drones, and NSA surveillance. For example, in para. 4:

The Committee regrets that the State party continues to maintain its position that the Covenant does not apply with respect to individuals under its jurisdiction but outside its territory, despite the contrary interpretation of article 2(1) supported by the Committee’s established jurisprudence, the jurisprudence of the International Court of Justice and state practice. [the Committee thus recommends to the US to:] Interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose and review its legal position so as to acknowledge the extraterritorial application of the Covenant under certain circumstances, as outlined inter alia in the Committee’s general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant;

With regard to the CIA ‘enhanced interrogation’ program under the previous US administration, the Committee was especially concerned about the impunity of the perpetrators of torture and other forms of ill-treatment, and recommended the investigation and prosecution especially of ‘persons in command positions,’ and that the ‘responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established.’ (para. 5)

With regard to drones, here is para. 9 in full:

The Committee is concerned about the State party’s practice of targeted killings in extraterritorial counter-terrorism operations using unmanned aerial vehicles (UAV) also known as ‘drones’, the lack of transparency regarding the criteria for drone strikes, including the legal justification for specific attacks, and the lack of accountability for the loss of life resulting from such attacks. The Committee notes the State party’s position that drone strikes are conducted in the course of its armed conflict with Al- Qaida, the Taliban, and associated forces and in accordance with its inherent right of national self-defense and are governed by international humanitarian law, as well as by the Presidential Policy Guidance that sets out standards for the use of lethal force outside areas of active hostilities. Nevertheless, the Committee remains concerned about the State party’s very broad approach to the definition and the geographical scope of an armed conflict, including the end of hostilities, the unclear interpretation of what constitutes an “imminent threat” and who is a combatant or civilian taking a direct part in hostilities, the unclear position on the nexus that should exist between any particular use of lethal force and any specific theatre of hostilities, as well as the precautionary measures taken to avoid civilian casualties in practice (arts. 2, 6, and 14).

The State party should revisit its position regarding legal justifications for the use of deadly force through drone attacks. It should: (a) ensure that any use of armed drones complies fully with its obligations under article 6 of the Covenant, including in particular with respect to the principles of precaution, distinction and proportionality in the context of an armed conflict; (b) subject to operational security, disclose the criteria for drone strikes, including the legal basis for specific attacks, the process of target identification and the circumstances in which drones are used; (c) provide for independent supervision and oversight over the specific implementation of regulations governing the use of drone strikes; (d) in armed conflict situations, take all feasible measures to ensure the protection of civilians in specific drone attacks and to track and assess civilian casualties, as well as all necessary precautionary measures in order to avoid such casualties; (e) conduct independent, impartial, prompt and effective investigations of allegations of violations of the right to life and bring to justice those responsible; (f) provide victims or their families with an effective remedy where there has been a violation, including adequate compensation, and establish accountability mechanisms for victims of allegedly unlawful drone attacks who are not compensated by their home governments.

With regard to the NSA, here is para. 22 in full:

The Committee is concerned about the surveillance of communications in the interests of protecting national security, conducted by the National Security Agency (NSA) both within and outside the United States through the bulk phone metadata program (Section 215 of the PATRIOT Act) and, in particular, the surveillance under Section 702 of Amendments to the Foreign Intelligence Surveillance Act (FISA) conducted through PRISM (collection of the contents of communications from U.S.-based companies) and UPSTREAM (tapping of fiber-optic cables in the U.S. that carry internet traffic) programs and their adverse impact on the right to privacy. The Committee is concerned that until recently, judicial interpretations of FISA and rulings of the Foreign Intelligence Surveillance Court (FISC) have largely been kept secret, thus not allowing affected persons to know the law with sufficient precision. The Committee is concerned that the current system of oversight of the activities of the NSA fails to effectively protect the rights of those affected. While welcoming the recent Presidential Policy Directive (PPD-28) that will now extend some safeguards to non-US persons “to the maximum extent feasible consistent with the national security”, the Committee remains concerned that such persons enjoy only limited protection against excessive surveillance. Finally, the Committee is concerned that those affected have no access to effective remedies in case of abuse (arts. 2, 5(1), and 17).

The State party should: (a) take all necessary measures to ensure that its surveillance activities, both within and outside the United States, conform to its obligations under the Covenant, including article 17; in particular, measures should be taken to ensure that any interference with the right to privacy complies with the principles of legality, proportionality and necessity regardless of the nationality or location of individuals whose communications are under direct surveillance; (b) ensure that any interference with the right to privacy, family, home or correspondence be authorized by laws that (i) are publicly accessible; (ii) contain provisions that ensure that collection of, access to and use of communications data are tailored to specific legitimate aims; (iii) are sufficiently precise specifying in detail the precise circumstances in which any such interference may be permitted; the procedures for authorizing; the categories of persons who may be placed under surveillance; limits on the duration of surveillance; procedures for the use and storage of the data collected; and (iv) provide for effective safeguards against abuse; (c) reform the current system of oversight over surveillance activities to ensure its effectiveness, including by providing for judicial involvement in authorization or monitoring of surveillance measures, and considering to establish strong and independent oversight mandates with a view to prevent abuses; (d) refrain from imposing mandatory retention of data by third parties; (e) ensure that affected persons have access to effective remedies in cases of abuse.

Perhaps the most important point here is the Committee’s insistence that surveillance activities comply with Article 17 ICCPR both within and outside the US, meaning that the Committee feels that the ICCPR does apply to extraterritorial surveillance (although it does not explain its exact theory for why this is the case). The Committee similarly asks the US to ensure compliance with the right to privacy regardless of the nationality or location of the individuals subjected to the surveillance, the nationality-discrimination point being especially relevant. (For my own thoughts on human rights treaties and foreign surveillance, see more here).

4 Responses

There are a few problems re: the analyses. For example, there is express attention to Gen. Comm. No. 31 re: extraterritorial application of the ICCPR, but a seeming lack of attention to the requirement set forth therein that a person who has a viable human rights claim must be within the actual “power or effective control” of the U.S. re: drone targeting. See, e.g., http://ssrn.com/abstract=1520717 and http://ssrn.com/abstract=1718548
Moreover, with respect to surveillance and ICCPR art. 17, the standard facially is “arbitrary” and not “necessity”? Why was there no attention to the actual language set forth in art. 17? or even Gen. Comm. No. 16 (“reasonable in the particular circumstances”)? Such deviations from the text of the ICCPR and the Comm.’s own Gen. Comm. might lead to a deflation of the Comm.’s authority.
With respect to ICCPR arts. 7 and 9, we must, for course, applaud the Comm. — see also http://ssrn.com/abstract=1989099 and http://ssrn.com/abstract=1331159 etc.
Can’t wait for the trials to begin!

There is an interesting link here between points (a) and (e) mentioned in para 9. The principle of proportionality mentioned in point (a) is a very fuzzy one. Accordingly, it follows from its very nature that in most cases it may be queried whether incidental injury to civilians or damage to civilian objects caused in the context of an armed conflict is excessive in relation to the military advantage anticipated. Does this mean that any such query (or second guessing) amounts to an allegation of a violation of the right to life which then triggers the duty to conduct an independent, impartial, prompt and effective investigation under point (e)? Or is that duty only triggered by credible or substantiated allegations? And if so, are the requirements of independence, impartiality, promptness and effectiveness subject to any adjustments in the context of an armed conflict? Good luck promptly conducting an independent and effective investigation during active hostilities, for instance following an aerial bombardment in enemy-held territory.

Aurel: and note that the ICCPR right involved is freedom from “arbitrary” deprivation of life whereas the law of war standards typically provide higher thresholds of reasonably needed and prohibitions of unnecessary death, injury or suffering — and then, the ICCPR right to life would only apply re: persons in the actual “power or effective control” of the party to an armed conflict that is operating outside of its territory or occupied territory.

Marko Milanovic

Dr Marko Milanovic is associate professor at the University of Nottingham School of Law. He is co-editor of EJIL: Talk! and a member of the EJIL's Editorial Board, as well as Secretary-General and member of the Executive Board of the European Society of International Law.